Opinion
No. 347846
03-19-2020
HARVEY CLARIZIO, Plaintiff-Counterdefendant-Appellee, v. TAMMY FORBES, CRIN FORBES, and DARIA FORBES, Defendants-Counterplaintiffs-Appellants.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ingham Circuit Court
LC No. 17-000885-NO Before: O'BRIEN, P.J., and JANSEN and GLEICHER, JJ. PER CURIAM.
Defendant-Counter Plaintiffs, Tammy Forbes, Crin Forbes, and Daria Forbes (plaintiffs) appeal as of right the trial court's order granting summary disposition to Plaintiff-Counter Defendant, Harvey Clarizio (defendant) under MCR 2.116(C)(8) and (10). We affirm.
I. FACTS
Defendant and his wife acquired the property at issue in 2009 and began renting the property in 2010. Defendant testified that, in March 2017, he had to evict a tenant from the property "[b]ecause of nuisance in the neighborhood and she wasn't taking care of the house." Defendant explained that when the tenant was evicted, there were bugs in the house, including bed bugs. When defendant found the bed bugs, he sent an extermination company—Eradico—to the property to exterminate the bugs. Defendant estimated that he hired Eradico "probably around early March, something like that." Defendant testified that on June 28, 2017, Eradico reported that there "was no bug activity in the house"; it was "[c]lear of bugs."
Eradico's report from June 28, 2017, is included in the lower court record. The report states, "[T]oday I inspected 210 francis st. For roaches and bed bugs. I did not find any roach activity or any bedbug activity anywhere throughout the home during my inspection. The home is currently bug free at this time."
Defendant testified that he showed Tammy and Daria the property on July 25, 2017. That same day, Tammy and Daria filled out rental applications for the property, and the parties signed a lease the following day.
Plaintiffs moved into the home on August 5, 2017. Tammy testified that the bed-bug problem was first identified on August 23 or 24, 2017. Tammy explained that she woke up with bites and immediately went to the doctor, who told her that the bites were from bed bugs. Tammy did not testify that she informed defendant of the bed bugs at that time. Daria agreed that plaintiffs first experienced a problem with bed bugs around August 23, 2017, but she said that they believed that they were bed bugs because they "looked on Google . . . ." Daria testified that they attempted to get ahold of defendant, but could not reach him and so went over to his home on August 28, 2017. Defendant confirmed that Tammy and Daria came to his home on August 28, 2017, and informed him of a bed-bug problem. According to defendant, this was the first time he learned that plaintiffs were dealing with a bed-bug problem at the property.
Defendant testified that the following day, August 29, 2017, he had Eradico go to the property to exterminate the bed bugs, but Eradico was unable to spray because, according to defendant, "the house was full of clutter and [Eradico] said that it wasn't ready to be exterminated." To address the problem, defendant "provide[d] two baggers to come in" and "get the clutter out of the house." The baggers "bagged up" the items to have them moved to a storage unit. Defendant testified that he agreed to pay (1) Eradico for the extermination, (2) the "two baggers," and (3) for "one storage unit for a period of six months," and also hired and paid for a moving company to move the bagged items to storage. Defendant explained that moving all of the clutter from the property took several days, so Eradico did not spray the property until September 9, 2017. According to defendant, Eradico came to the property to spray a second time on September 30, 2017. Defendant testified that, on that date, Eradico told him that "there was no bug activity to be found." Defendant said that Eradico came to the property to spray a third time on October 20, 2017, but plaintiffs refused to let them inside.
Defendant testified that Tammy "always complained about bugs," and that he had Eradico go to the home multiple times and "they would say that there are no bugs present." Defendant also testified that Tammy eventually called an inspector with the city, who came out to inspect the house in October 2017 and found "that there were no bugs and it was up to code." Defendant testified that eventually, on May 31, 2018, Griffin Pesticides came to the home to inspect for bed bugs using dogs, and did not find any bugs.
The inspector's report is included in the lower court record and states that the inspector "could not find any evidence of bed bug activity and owner provided sufficient documentation from pest control service that states there is no activity."
This action, which was filed on October 10, 2017, predated some of the above described events. Defendant filed a complaint in district court seeking to evict plaintiffs for nonpayment of rent. On October 18, 2017, plaintiffs filed their answer and a countercomplaint. As relevant to this appeal, plaintiffs' countercomplaint asserted that, based on the bed-bug infestation, (1) defendant negligently maintained the premises, (2) defendant breached his duty to maintain the premises under MCL 554.139(1)(a) and (b), (3) defendant violated the Michigan Housing Law, including MCL 125.474, (4) defendant "engaged in unfair, unconscionable, and deceptive methods" in violation of the Michigan Consumer Protection Act (MCPA) and 15 USC § 45 by "failing to disclose material facts to Defendants, regarding bed bugs," (5) defendant violated the Truth in Lending Act, the Mortgages and Practices Act, and the Consumer Leasing Act, and (6) defendant unlawfully interfered with plaintiff's possession of the property under MCL 600.2918. The countercomplaint requested damages in excess of $25,000.
The countercomplaint was drafted by plaintiffs acting in pro per and at times it is unclear what plaintiffs were asserting.
On November 14, 2017, the district court entered a stipulated order to remove the action to circuit court. On January 8, 2018, the circuit court entered an order severing defendant's summary-eviction claim from plaintiffs' counterclaim, and remanded the summary-eviction action back to district court. The issues on appeal only concern plaintiffs' counterclaim.
On August 29, 2018, defendant filed a motion for summary disposition under MCR 2.116(C)(8) and (10) for the claims raised in plaintiffs' counterclaim. In response to plaintiffs' premises liability claim, defendant contended that he promptly addressed the bed-bug issue once it was brought to his attention by plaintiffs. Defendant also argued that, contrary to what he believed plaintiffs would argue, there was no evidence that he knew or should have known that the property had bed bugs, because all of the evidence showed that the property was bed-bug free as of June 2017. For plaintiffs' MCPA claim, defendant argued that he was not liable under the MCPA because, again, he did not have notice that the property had bed bugs when he rented it to plaintiffs. As for plaintiffs' claims under MCL 554.139, defendant contended that although the bed bugs were inconvenient for plaintiffs, they did not render the property unfit for its intended use, especially when plaintiffs continued to live there and defendant worked diligently to resolve the issue. Defendant argued that, for similar reasons, he kept the property in reasonable repair and complied with all applicable health and safety laws. Addressing plaintiffs' claim for unlawful eviction under MCL 600.2918, defendant contended that the evidence unequivocally showed that he never interfered with plaintiffs' use or enjoyment of the property, and instead it showed that he did everything he could to ensure that plaintiffs could continue to use and enjoy the property. Defendant finally asserted that plaintiffs' claims of violations of the Michigan Truth in Renting Act, the Mortgage Act and Practices, and the Consumer Leasing Act all failed because none of those acts applied to the facts of this case.
Plaintiffs never filed a response. On January 16, 2019, the trial court held a hearing on defendant's motion for summary disposition and granted the motion "in its entirety for the reasons that are outlined in [defendant's] motion and the brief and the documents in support."
On February 6, 2019, plaintiffs filed a motion for reconsideration. Plaintiffs contended that there was no evidence that defendant sprayed for bed bugs after evicting a tenant in March 2017, and so defendant "willfully and intentionally allowed the bed bugs to remain on the Property before [plaintiffs] moved in." Plaintiffs argued that defendant was liable under a premises liability theory because defendant did not respond promptly to plaintiffs' complaints of bed bugs, and because defendant knew or should have known that there were bed bugs on the property when he rented it to plaintiffs based on the bed bug problem identified in March 2017. Plaintiffs made essentially the same argument for all of their other claims. Plaintiffs argued that defendant was liable under the MCPA because he knew that the property was infested with bed bugs but "fail[ed] to reveal [to plaintiffs] that the Property had bed bugs and/or vermin." Plaintiffs argued that defendant violated the implied warranty of habitability in MCL 554.139 because defendant "knew or should have known that the bed bugs should be still in the Property" when he rented it to plaintiffs. Plaintiffs also contended that this was a violation of MCL 125.474 in that defendant failed to keep his property "free from bed bugs and vermin."
The trial court denied plaintiffs' motion for reconsideration in an opinion and order on February 7, 2019. The trial court explained:
The basis for [plaintiffs'] argument is that [defendant] knew or should have known that there were bed bugs in the home at the time the [plaintiffs] signed the lease and throughout their tenancy, that [defendant] made material misrepresentations to [plaintiffs] about the property in failing to disclose the previous presence of bed bugs, and that [defendant] continually failed to respond to complaints about the bed bugs or to take steps to remedy the situation, thereby violating his various duties as landlord.The trial court concluded that plaintiffs only offer "their personal difference of opinion as to what [defendant] should have believed or done, which does not establish the showing of palpable error required for this Court to reconsider" its prior order.
However, the evidence that [defendant] did take steps to inspect the property and to eradicate any infestations was well-established by the record, given the multiple reports by a pest control company before and after [plaintiffs] moved into the property that no pests were present, as well as a Lansing Fire Department inspection report that found the same absence of pests. [Plaintiffs] provide[] no information to establish that [defendant] was unreasonable in his reliance on these reports or that he was in possession of contradictory information, particularly, as [defendant] notes, as [plaintiffs] refused entry to a pest control company in October on [sic] 2017 that was attempting to follow up on these complaints.
Plaintiffs now appeal as of right.
II. STANDARD OF REVIEW
Appellate courts review de novo a trial court's grant of summary disposition. Innovation Ventures v Liquid Mfg, 499 Mich 491, 506; 885 NW2d 861 (2016). Defendant moved for summary disposition under MCR 2.116(C)(8) and (10). In Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d 817 (1999), our Supreme Court explained the process for reviewing a motion filed under MCR 2.116(C)(8):
A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint. All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. Wade v Dep't of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are "so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Id. at 163. When deciding a motion brought under this section, a court considers only the pleadings. MCR 2.116(G)(5).For a motion under MCR 2.116(C)(10), the Maiden Court explained the review as follows:
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. [Maiden, 461 Mich at 120.]A genuine issue of material fact exists when, after viewing the evidence in a light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
III. ANALYSIS
Plaintiffs first argue on appeal that there is at least of question of fact whether defendant knew or should have known that the property was infested with bed bugs when he rented the property to plaintiffs. We conclude that defendant submitted sufficient evidence to establish that he did not know or have reason to know of bed bugs on the property when he rented it to plaintiffs, and plaintiffs have failed to proffer evidence creating a question of fact.
Defendant testified that he contacted Eradico "around early March" of 2017 after bed bugs were found at the property. Though he did not remember how many times Eradico sprayed the property, he agreed that they sprayed the property one or two times before June 28, 2017. Defendant testified that Eradico declared the property bed-bug free on June 28, 2017. This is confirmed by Eradico's June 28, 2017 summary stating, "The home is currently bug free at this time." Defendant submitted this evidence in his dispositive motion. We conclude that defendant could reasonably rely on Eradico's June 28, 2017 report to conclude that there were no bed bugs on the property, and this evidence was sufficient to establish that defendant did not know or have reason to know of any bed bugs on the property when he rented it to plaintiffs in July 2017.
In response to this evidence, plaintiffs argue that there is a question of fact whether defendant knew or should have known that bed bugs were still on the property when he rented it to plaintiffs because defendant did not have the property sprayed after finding bed bugs in March 2017. This argument is based on a mistaken premise; defendant testified that, after bed bugs were found on the property in March 2017, he had the property sprayed one or two times before it was declared bed-bug free on June 28, 2017. While plaintiffs are correct that defendant did not provide any receipts for Eradico's spraying(s) between March 2017 and June 2017, defendant's deposition was sufficient to establish that defendant had the property sprayed during that time. See MCR 2.116(G)(2) (explaining that "affidavits, depositions, admissions, or other documentary evidence may be submitted by a party to support or oppose" a motion under MCR 2.116(C)(10)) (emphasis added). At any rate, defendant had no reason to assume—let alone "know"—that there were bed bugs on the property in light of Eradico's June 28, 2017 statement that there were no bugs on the property. Plaintiffs do not point to any evidence (other than their mistaken belief that defendant did not have the property sprayed before it was declared bed-bug free in June 2017) that could create a question of fact whether defendant knew or should have known of bed bugs on the property when he rented it to plaintiffs. In light of the evidence proffered by defendant, a reasonable juror could only conclude that defendant did not know or have reason to know of any bed bugs on the property when he rented it to plaintiffs.
A. PREMISES LIABILITY
Plaintiffs next argue that the trial court erred by dismissing their premises liability claim. "In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Benton v Dart Properties, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). The type and extent of a defendant's duty in a premises liability action depends on the plaintiff's status on the defendant's land. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). A tenant is an invitee of a landlord, id. at 604, 614, so the landlord's duty to a tenant is "to exercise reasonable care to protect the [tenant] from an unreasonable risk of harm caused by a dangerous condition on the land," Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). A landlord breaches its duty to a tenant when the landlord "knows or should know of a dangerous condition on the premises of which the [tenant] is unaware and fails to fix the defect, guard against the defect, or warn the invitee of the defect." Hoffner v Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012).
As explained above, plaintiffs failed to proffer evidence to establish a question of fact whether defendant knew or should have known of any bed bugs on the property when he rented it to plaintiffs. Thus, defendant, as landlord, did not breach any duty to plaintiffs, as his tenants, because no reasonable juror could conclude that he knew or should have known of the complained-of dangerous condition on the property. See id. The trial court correctly concluded that defendant was entitled to summary disposition on plaintiffs' premises liability claim.
Plaintiffs, in one sentence without citation, state that defendant is liable under a premises liability theory because defendant "did not respond promptly to [plaintiffs'] complaints, and did not resolve the bed bug infestation in an expeditious manner." Assuming that once defendant became aware of the bed bugs on his property, he had a duty to promptly fix it, reasonable minds could not disagree that defendant did so. The record shows that plaintiffs first experienced problems with bed bugs beginning on August 23, 2017, yet there is no dispute that defendant first became aware of the problem on August 28, 2017, when Tammy and Daria went to defendant's home and told him. Defendant hired exterminators to come to the property, and they arrived on August 29, 2017. The exterminators, however, were unable to treat the property for bed bugs because the way plaintiffs stored their belongings created too much clutter. Defendant hired people to pack and move plaintiffs' belongings to a storage unit, which took several days. As a result, the property was not treated until September 9, 2017. According to defendant, Eradico came to the property to spray a second time on September 30, 2017, and on that date, Eradico told him that "there was no bug activity to be found." This is confirmed by Eradico's September 30, 2017 summary, showing that it treated the property and noting, "no activity found." Yet plaintiffs continued to complain, and they eventually called the Lansing Fire Department to inspect the property. The inspector reported no bed-bug activity. Thus, there was ample evidence to conclude that defendant acted promptly and fixed the problem once it was brought to his attention. Plaintiffs have offered no evidence to support their contrary contention, thereby failing to establish a genuine issue of material fact with respect to their claim.
Plaintiffs allege on appeal that bed bugs continued to bite them through "mid February 2018" and that they requested a dog inspection at that time, but defendant did not order the inspection until three months later. Yet there is nothing in the record to support these statements. This is presumably because Tammy cut her deposition short, saying that she was "in a lot of pain and . . . need[ed] to take medication." There is nothing in the record suggesting that Tammy continued her deposition at a later date, yet plaintiffs raise no issue with this on appeal. Thus, nothing in the record supports that plaintiffs continued to suffer from bed-bug bites through February 2018 and that defendant delayed three months before ordering the dog inspection.
B. MCPA AND 15 USC § 45
Plaintiffs allege that defendant violated 15 USC § 45, which states, "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." Plaintiffs also alleged in their complaint that defendant violated MCL 445.903(1)(s), (bb), and (cc) of the MCPA. Those sections state:
(1) Unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce are unlawful and are defined as follows:Plaintiffs argue that defendant violated 15 USC § 45 and MCL 445.903(1)(s), (bb), and (cc) by knowing about the bed bugs on the property and failing to disclose this information to plaintiffs when he rented the property to them. As already explained, however, defendant established that he had no knowledge of any bugs on the property when he rented it to plaintiffs, and plaintiffs failed to proffer evidence bringing this fact into question. The trial court therefore properly granted defendant summary disposition on these claims.
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(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.
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(bb) Making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is.
(cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner.
C. MCL 554.139
Plaintiffs finally argue that, because there were bed bugs on the property, defendant violated MCL 554.139(1). That statute states:
(1) In every lease or license of residential premises, the lessor or licensor covenants:
(a) That the premises and all common areas are fit for the use intended by the parties.
(b) To keep the premises in reasonable repair during the term of the lease or license, and to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located, except when the disrepair or violation of the applicable health or safety laws has been caused by the tenants wilful or irresponsible conduct or lack of conduct. [MCL 554.139(1).]
Plaintiffs fail to explain how the presence of bed bugs made the property unfit for its intended use, thereby abandoning their claim under MCL 554.139(1)(a). See Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998).
Turning to plaintiffs' claims under MCL 554.139(1)(b), that statute contains multiple covenants. Estate of Trueblood v P&G Apartments, LLC, 327 Mich App 275, 294; 933 NW2d 732 (2019). First, MCL 554.139(1)(b) requires a landlord "[t]o keep the premises in reasonable repair during the term of the lease or license[.]" Like plaintiffs' claim under MCL 554.139(1)(a), plaintiffs do not explain how defendant failed to comply with the first portion of MCL 554.139(1)(b), thereby abandoning the issue on appeal. See Wilson, 457 Mich at 243.
MCL 554.139(1)(b) also requires a landlord "to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located[.]" Plaintiffs contend that defendant violated this covenant by failing to comply with applicable state and local laws governing the property.
Plaintiffs argue that because there were bed bugs on the property, defendant failed to comply with MCL 125.474. That statute requires an owner of property to keep the property free from vermin "except that the tenants shall be responsible for the cleanliness of those parts of the premises that they occupy and control." MCL 125.474. Bed bugs were discovered on the property three weeks after plaintiffs moved in; at that time, plaintiffs (as tenants) were responsible for complying with MCL 125.474. Thus, by MCL 125.474's terms, defendant cannot be held responsible for the bed bugs discovered on the property three weeks after plaintiffs occupied and controlled the premises.
It does not appear from their appellate brief that plaintiffs are arguing that defendant violated MCL 125.474 because there were bed bugs on the property when they moved in. If that is what they are arguing, we would conclude that the argument is without merit. There is simply no evidence that the property had bed bugs when plaintiffs moved in. The only evidence whether the property had bed bugs at that time was Eradico's June 28, 2017 report declaring the property bedbug free. Once plaintiffs moved in, they did not report any problems with bed bugs until three weeks later. Plaintiffs have not proffered any evidence to show that the property had bed bugs when they moved in on August 5, 2017. We therefore conclude that defendant proffered sufficient evidence to establish that there were no bed bugs on the property when plaintiffs moved in, and plaintiffs failed to proffer evidence bringing this fact into question.
In their final argument, plaintiffs contend that defendant failed to comply with Lansing Ordinance § 1460.21. That section was removed from the Lansing Ordinance in 2013, and is therefore not applicable. Regardless, plaintiffs never raised this argument before the trial court, so we decline to address it. See Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005) (explaining that this Court "need not address issues first raised on appeal").
Plaintiffs do not contest all of the decisions made by the trial court—like its decision to grant summary disposition to defendant on plaintiffs' claim under MCL 600.2918. We consider those issues not raised by plaintiffs as waived, so we do not address them. See McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 297-298; 618 NW2d 98 (2000) (explaining that issues raised at trial but not raised on appeal can be considered waived). See also Michigan Gun Owners, Inc v Ann Arbor Pub Sch, 502 Mich 695, 709-710; 918 NW2d 756 (2018) ("In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present. The plaintiffs decided not to present this issue, and so we decline to reach it.") (Quotation marks and citation omitted.) --------
Affirmed.
/s/ Colleen A. O'Brien
/s/ Kathleen Jansen
/s/ Elizabeth L. Gleicher