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STATE OF MICHIGAN
COURT OF APPEALS


DANIEL R. MCLAUGHLIN and KAREN E. MCLAUGHLIN, Plaintiffs-Appellants, v JAMES ROURKE, JAMES ROURKE CUSTOM BUILDER, INC., LAFOND ELECTRIC COMPANY, INC., and REYNOLD LAFOND, Defendants-Appellees.

UNPUBLISHED December 29, 1998

No. 195897 Mackinac Circuit Court LC No. 91-003146 CK

Before: Markman, P.J., and Griffin and Whitbeck, JJ. PER CURIAM. Plaintiffs appeal as of right the trial court's judgment and the jury verdict in favor of defendants in a suit regarding a contract to build an addition on plaintiffs' home. The trial court granted a directed verdict as to all counts against individual defendants James Rourke and Reynold LaFond; and the jury rendered a verdict of no cause of action on the remaining claims in favor of defendants James Rourke Custom Builder, Inc., and LaFond Electric Co., Inc. We affirm. On October 26, 1988, plaintiffs hired defendants James Rourke Custom Builder, Inc. and its owner and operator James Rourke ("Rourke") as the general contractor to build an addition on their house, which is located on Lake Michigan in Naubinway, Michigan. Rourke wrote up a proposal, signed by himself and plaintiffs on the letterhead of James Rourke Custom Builder, Inc., containing an estimated cost of $107,155, a defined installment payment plan and a schedule of performance. Using a bid from Wickes Lumber Company, Rourke listed the material specifications on the proposal based on plaintiffs' preferences and standard materials. The proposal contained the following warranty statement: All materials guaranteed to be as specified. All work to be completed in a workmanlike manner according to standard practices. Any alteration or deviation from above specifications involving extra cost will be executed only upon written orders, and will

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become an extra charge over and above the estimate. All agreements contingent upon strikes, accidents or the delays beyond our control. Owner to carry fire, tornado and other necessary insurance. Our workers are fully covered by Workmen's Compensation insurance. There was no mention of a surcharge or an additional fee to the general contractor. Plaintiffs believed that the total price they would pay was what was stated on the contract: $107,155. Plaintiffs were required to pay any subcontractors personally for their work. The remainder of the money was payable to James Rourke. Defendants LaFond Electric Company, Inc., and its owner and operator, Reynold LaFond ("LaFond"), were hired as the subcontractor to do the electrical work pursuant to Rourke's recommendation. During construction, when the rough wiring was being installed, LaFond was not present at the construction site for several weeks. Two of LaFond's unlicensed apprentices installed the electrical work during this time. Rourke called LaFond in Florida repeatedly because he was required to supervise while any unlicensed apprentices were working. However, LaFond did not return until three or four weeks later. Nevertheless, the wiring passed the rough inspection by the state inspector, which is required before the drywall goes up. When Rourke was finished with the construction on April 27, 1989, he met with plaintiffs to finalize the payments. Rourke stated that when he drew up the proposal, he tried to include a customary profit margin. However, unforeseen charges were paid by the corporation, Rourke Custom Builder, Inc., leaving it with no profits. Rourke showed plaintiffs every bill that came in, and showed them all of his actual costs for material and labor. Rourke stated he did not require written change orders because he felt that if he informally spoke with plaintiffs about it and they agreed, then there would be no problems. Rourke stated in this regard: I didn't make any representations. I was just asking, you know, the project, we had extras, bad weather delays, they could see the bills. I had shown them the bills which were something, the bills, normally, only the contractor sees. That we basically broke even on the job. I said I would like to get an extra $10,000. All they had to say was no. They wrote me a check and I left. . . . Plaintiffs on the other hand stated that Rourke said it was customary for the contractor to get ten percent over the contract price and represented that $10,000 was due under the contract. Although plaintiffs did not agree with him, they did not believe they had any choice but to pay him since they did not have their contract with them at that time and they felt that Rourke had them "over a barrel" because the electric system was causing problems for them. On April 27, 1989, the final payment was made. The next day Rourke received a list of electrical problems from plaintiffs. He stated that he called LaFond to find out if he was going to take care of these problems, but LaFond told him that he had not been allowed back on the property to fix any problems. Further, about six to eight months after the construction ended, shingles started blowing off the roof. Rourke's employees repaired the roof twice under the warranty. After the warranty

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expired, plaintiffs paid Rourke to repair the roof once, then hired other workers to repair the roof. Witnesses at trial disagreed about whether the shingles blew off the roof because they were only warranted to resist winds up to fifty-five miles per hour and unusually high winds around the lake had been in excess of this speed, or because the shingles did not seal properly because they had been installed in the winter and the wrong fasteners had been used to install them. When a state inspector, John Hillock, performed four electrical inspections on the addition in April 1989, June 1989, July 1990 and August 1990, he found several code violations, referred to as "punch list" items because they are relatively common violations, and are fixed with relative ease. These were generally of the type that are routinely found at a final inspection and that a contractor could have corrected within several days. LaFond received notification of the violations from Hillock and testified that he would have corrected the problems without charge because he guaranteed that he would correct any violations. However, he was not allowed back onto the property by plaintiffs after the problems were discovered in order to fix them. After the inspections, plaintiffs decided that since Hillock had "lightly passed over the serious situation" of their electrical problems, he must be protecting his friend, LaFond. Thus, plaintiffs did not wish to have Hillock conduct the final inspection, which is required by law. A second state inspector, Virgil Monroe, then inspected the addition and found the same relatively minor violations. Subsequently, plaintiffs wrote a letter to the governor, complaining that Monroe too was a "personal friend of the electrician in question." A letter from the Department of Labor in response to plaintiffs' complaints conveyed the department's satisfaction with the inspections of both Hillock and Monroe. Plaintiffs did not allow LaFond to correct the electrical problems. Indeed, they did not hire anyone to fix the violations, which remained uncorrected at the time of trial. Thus, they also have not had a final inspection of the work as required by law more than six years after the construction. Plaintiffs testified that they did not fix the problems because they wanted to have evidence of the violations so that there would be no argument about them. In 1991, plaintiffs filed a complaint against defendants, alleging breach of contract and negligence against all four defendants; negligent supervision, misrepresentation and unjust enrichment against Rourke and James Rourke Custom Builder, Inc.; and a violation of the Michigan Consumer Protection Act (MCPA) by Rourke. At the close of proofs at trial, the trial court granted a directed verdict with regard to all counts against the individual defendants. The jury returned a verdict of no cause of action on the remaining breach of contract, negligence and misrepresentation claims against the corporate defendants. Thereafter, plaintiffs filed a motion to correct judgment and a motion for a new trial. The trial court entered a corrected judgment, but denied the motion for a new trial. Plaintiffs first argue that the trial court abused its discretion at trial when it excluded expert witness Walter Anderson's opinion regarding the integrity of the electrical system. Plaintiffs assert that the testimony was improperly excluded because it embraced the ultimate issue, i.e. whether the integrity of the entire electrical installation was suspect. The decision whether to admit or exclude evidence is within the trial court's discretion. People v Sawyer, 222 Mich App 1, 5; 564 NW2d 62 (1997). Plaintiffs correctly argue that it is improper, pursuant to MRE 704, to preclude the admission of testimony simply because it touches on or embraces the ultimate issue in the case. Ruddock v Lodise, -3

413 Mich 499, 503-504; 320 NW2d 663 (1982). However, where expert testimony is purely speculative, it may be excluded or stricken pursuant to MRE 403. Indeed, it is precisely to avoid speculation that expert testimony is ordinarily required. Locke v Pachtman, 446 Mich 216, 229; 521 NW2d 786 (1994). In this case, plaintiffs' expert was precluded from testifying to the jury that, based on the finding of one additional violation over that found by the two state inspectors, the integrity of the entire electrical system was disturbed. The expert made it clear he had done only a cursory inspection of the electrical wiring. Yet he opined to the court that, based on his finding of one additional skinned wire, there was reason to suspect that the wire throughout the entire addition was skinned and therefore the entire job was faulty. In fact, the court did not exclude this testimony because it embraced an ultimate issue pursuant to MRE 704, but rather because it was purely speculative. In our judgment, Anderson's opinion that the entire electrical installation was suspect, based only on his cursory examination, was indeed speculative. Thus, the trial court did not abuse its discretion by sustaining defendants' objection to the testimony. Next, plaintiffs claim that the trial court improperly refused to instruct the jury regarding Rourke's "admissions" to interrogatory questions. When a party requests an instruction that is not covered by the standard jury instructions, the trial court may, in its discretion, provide additional instructions, provided they are applicable and accurately state the law. MCR 2.516(D)(4); Chmielewski v Xermac, Inc, 216 Mich App 707, 713-714; 550 NW2d 797 (1996). Jury instructions are to be reviewed in their entirety: There is no error requiring reversal if the instructions sufficiently protect the rights of the parties and fairly present to the jury the issues to be tried. Setterington v Pontiac General Hospital, 223 Mich App 594, 605; 568 NW2d 93 (1997); People v Holt , 207 Mich App 113, 116; 523 NW2d 856 (1994). MCR 2.312(D)(1) provides for "judicial" admissions: A matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of an admission. For good cause the court may allow a party to amend or withdraw an admission. The court may condition amendment or withdrawal of the admission on terms that are just. [Emphasis added.] "In contrast to `evidentiary' admissions, i.e., admissions of a party opponent under MRE 801(d)(2), judicial admissions are not really `evidence' at all." Radtke v Miller, Canfield, Paddock & Stone, 453 Mich 413, 420; 551 NW2d 698 (1996), citing to 2 McCormick, Evidence (4th ed),

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