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STATE OF MICHIGAN
COURT OF APPEALS


CURTIS W. BOYD and EULANDA L. BOYD, Plaintiffs-Appellants, v PAUL E. BURKE, SR., Defendant, and RE/MAX GAYLORD and PETER W. WHYTE, Defendants-Appellees.

UNPUBLISHED May17, 2007

No. 275313 Otsego Circuit Court LC No. 06-011740-CH

Before: Schuette, P.J., and O'Connell and Davis, JJ. PER CURIAM. Plaintiffs Curtis W. Boyd and Eulanda L. Boyd appeal an order granting summary disposition in favor of defendants RE/MAX of Gaylord and Peter W. Whyte and granting them attorney fees. We affirm. This case arose out of a failed real estate transaction between plaintiffs and defendant Paul E. Burke, Sr. (hereinafter "Burke"). Plaintiffs became interested in purchasing a house owned by Burke, and apparently wished to purchase the house in a furnished state. Defendants RE/MAX of Gaylord and Peter W. Whyte acted as dual agents with Burke and plaintiffs in connection with the property transaction. There is no dispute that this dual agency was by the agreement of both parties and after all relevant and legally required disclosures. See HJ Tucker and Assocs, Inc v Allied Chucker and Engineering Co, 234 Mich App 550, 574; 595 NW2d 176 (1999). Burke did not appear in this action, and plaintiffs eventually stipulated to dismiss their claims against Burke with prejudice. Therefore, the only issues on appeal pertain to plaintiffs' claims against defendants RE/MAX of Gaylord and Peter W. Whyte (hereinafter "defendants"). Plaintiffs assert that defendants breached their fiduciary duties by failing to resolve issues arising out of the purchase agreement. Plaintiffs initially sent a "Buy and Sell Agreement" to Burke. provided as follows: In relevant part, it

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ALL IMPROVEMENTS AND APPURTENANCES ARE INCLUDED in the purchase price, including now in or on the property, the following: T.V. antenna and complete rotor equipment; garage door opener and transmitter(s); carpet; lighting fixtures and their shades; drapery and curtain hardware; window shades and blinds; screens, storm windows and doors; stationary laundry tubs; water softener (unless rented); water heater; incinerator; heating and air conditioning equipment; water pump and pressure tank; built-in kitchen appliances including garbage disposal; awnings; mail box; all plantings; fence(s). Exceptions:* [sic] The sale shall include the range, ref. and window treatments. The sale shall also include all furnishings located at the property, excluding personal items. Inventory list to be provided. The list through "Exceptions:" was boilerplate language; the remainder of the above list was manually added. Attached to this document was an addendum that provided in relevant part: In any action or proceeding arising out of this agreement, the prevailing party, [sic] shall be entitled to actual and reasonable attorneys fees and costs. This shall also be applicable to any Realtor(s) who become a party to such action or proceeding which Realtors shall be considered a third party beneficiary to this contract. Burke apparently agreed to and signed the Buy and Sell Agreement, subject to two addendums. The first was essentially identical to the original addendum that plaintiffs had forwarded. The second addendum, which the parties construed as a counter-offer, provided in part: The personal property shall be removed on or before May 1st. 2006. Upon [sic] the personal property has been removed an inventory list will be provided for the Sellers and Purchasers review and approval. Purchasers shall have until 5:00 p.m. on March 18, 2006, to accept Sellers counter offer at which point this agreement shall be NULL & VOID. Plaintiffs signed this counter-offer. The next day, however, plaintiffs sent an email to defendant realtors that read as follows: Bill, Find attached the signed paperwork for the offer on the property, 5611 Harvey. Please note that Eulanda and I expect the personal items to be limited to personnel [sic] effects (clothing, etc...), the gun and the boat, not furniture or furnishings, appliances or case goods. I mention this because the sellers acceptance does not make this clear. Please do not hesitate to call. The parties had no further communications until May, 2006. Plaintiffs prepared a list of "missing items" from the house, which indicated that it was "prepared in accordance with the

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acceptance of the Buy and Sell agreement between Curtis & Eulanda Boyd and Paul Burke," and which they forwarded to defendants. The only item on the "missing items list" that was explicitly enumerated in the original Buy and Sell Agreement was a refrigerator. Defendant Whyte subsequently prepared an "inventory list" for plaintiffs. Among other items, this inventory list indicated that a refrigerator had actually been left, and it further listed the range and window treatments. Plaintiffs demanded compensation for the furnishings listed in the "missing items list," which they contended were required by the purchase agreement to have been included in the sale. Burke disagreed, denied the requested compensation, and rescinded the Buy and Sell Agreement. Plaintiffs commenced this suit. Plaintiffs' theory against defendants was that they breached the agency agreement as follows: That in the event the aforementioned "Buy and Sell Agreement" Addendums and March 15, 2006 email did not create a binding purchase agreement, then the Defendants Re/Max of Gaylord and/or Peter W. (Bill) Whyte had an obligation to inform the Plaintiffs, and the Defendant Paul E. Burke, Sr., that there was no binding agreement so that a binding agreement could be completed. The trial court concluded that this constituted an assertion that defendants had a duty to engage in the unauthorized practice of law, so the trial court granted defendants summary disposition pursuant to MCR 2.116(C)(8). We do not believe it necessary to determine what would constitute unauthorized practice of law for a realtor,1 but we agree with the result reached by the trial court. The only ambiguity we perceive in the documents we have been provided is whether a particular refrigerator was, in fact, removed from the house. Plaintiffs' list of missing items indicates that a refrigerator was taken, whereas defendants' inventory list indicates that a refrigerator remains. Otherwise, all the items enumerated in the original Buy and Sell Agreement that had been in the house to begin with (some which may not have applied) were left in the house. An exception was explicitly provided for "personal property." In contrast, "furniture" was not mentioned. The Buy and Sell Agreement required provision of an inventory list, and the first addendum

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