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STATE OF MICHIGAN COURT OF APPEALS

BILL G. ELLIOTT and MARIE L. ELLIOTT, Individually and as Next Friend of IAN A. ELLIOTT, a Minor, Plaintiff-Appellees, v DANIEL L. THERRIEN and MARY ANN THERRIEN, Defendant-Appellants, and WIST, INC., d/b/a SERVICEMASTER PRIORITY CARE, AMY COVAULT, and HALLMARKWEST REALTY, INC., Defendants.

UNPUBLISHED January 26, 2010

No. 288235 Oakland Circuit Court LC No. 2005-069174-CK

Before: Murphy, C.J., and Zahra and Jansen, JJ. PER CURIAM. Defendants Daniel and Mary Ann Therrien ("Therriens") appeal as of right final judgments totaling $303,814 entered by the trial court in favor of plaintiffs Bill and Marie Elliott ("Elliotts") and their son Ian in this action arising out of fraud allegations associated with the conveyance of a mold-contaminated house by the vendor Therriens to the vendee Elliotts. The judgments, one for the Elliotts and one for Ian, were predicated on a jury verdict. The jury found that the Therriens were liable under the theory of fraudulent concealment, or silent fraud, for failing to disclose information concerning the presence of mold in the home, which sickened the Elliotts and Ian and required extensive remediation efforts. The jury rejected the Elliotts' claim of fraudulent misrepresentation, and a claim of innocent misrepresentation was dismissed on a motion for directed verdict. The jury verdict on the silent fraud claim awarded damages that totaled $441,700. The judgments reflect consideration of the jury's allocation of fault, the taxation of costs, prejudgment interest, and setoffs arising from settlements with defendant Wist Inc., d//b/a ServiceMaster Priority Care ($40,000), and defendants Amy Covault and HallmarkWest Realty, Inc. ($20,000). ServiceMaster was employed to do the remediation work, and -1-

Covault and Hallmark-West were, respectively, the Therriens' realtor and realty company. On appeal, we affirm the judgments. I. Facts Before turning our attention to the arguments presented by the Therriens on appeal, we shall review the evidence in order to give context to the analysis of the appellate issues. Prior to the Elliotts making an offer on the home, a prospective purchaser made an offer on the house that was accepted; however, the ensuing home inspection revealed extensive mold in the home's attic and no sale transpired. The Therriens were residing in Florida while their vacant home was on the market, and Dan Therrien asked his brother Jim Therrien, who lived in Michigan, to check into the mold problem and to have mold testing conducted so that the presence of mold, if it actually existed, could be confirmed. Jim hired Mold Free to conduct an inspection and testing, and Dr. Mark Banner, a certified mold inspector employed by Mold Free, inspected the property and tested for mold. On the basis of his findings, Dr. Banner prepared a Mold Free Report (MFR), which was sent to the Therriens and Covault. Banner checked and tested for mold only in the home's attic and master bedroom, which was where the attic entryway was located. The MFR revealed the presence of mold in the attic and master bedroom. The laboratory results as to air tests in the master bedroom indicated a "high level of contamination." With respect to spore counts in the master bedroom and particular types of mold, the laboratory results provided, in part, that Basidiospores measured 11,659 and that the Penicillium-Aspergillus group measured 11,286. These numbers were listed as "high" under the MFR's section on "Interpreting Laboratory Results." That same section of the MFR stated that, among other fungi, Aspergillus and Penicillium "can produce potent mycotoxins," which "are fungal metabolites that have been identified as toxic agents," and "[e]ven low levels of these species should be remediated." In regard to the attic, the dominant mold found there was Stemphylium. With respect to Stemphylium, the MFR provided, "Stemphylium sp.

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Michigan Law