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STATE OF MICHIGAN
COURT OF APPEALS


JOHN E. McAVOY and ROSALIE A. McAVOY, Plaintiffs/Cross-Defendants-Appellees, v DENNIS DUBUC, Defendant-Appellant, and CAROL DUBUC, Defendant/Cross-Plaintiff, and WENDELL CONSTRUCTION, INC., LAUREL ROOT, d/b/a, J & T CONTRACTING, and COUNTY OF KALKASKA Defendants.

UNPUBLISHED January 14, 2000

No. 213483 Kalkaska Circuit Court LC No. 95-005447-NM

Before: Smolenski, P.J., and Griffin and Neff, JJ. PER CURIAM. Defendant Dennis Dubuc (hereafter "defendant") appeals as of right the circuit court's entry of judgment in favor of plaintiffs following a jury verdict that awarded plaintiffs $25,000 damages on their claim of fraudulent misrepresentation in the sale of a home. We affirm. I Plaintiffs John and Rosalie McAvoy (hereafter "McAvoy" and "Rosalie," respectively) purchased a new home in Williamsburg from defendant and his wife, Carol. Defendant served as the general contractor for the construction of the home, subcontracting with defendant Wendell Construction for the rough carpentry work, and with defendant Laurel Root for installation of the -1

plumbing and heating system. Building inspectors for defendant Kalkaska County conducted building inspections of the home and issued an occupancy permit.1 Plaintiffs subsequently experienced problems with the home's heating system. On January 30, 1994, a water pipe in an upstairs bathroom ruptured, flooding the home with thousands of gallons of water and causing major damage to the home. In moving the furnishings from the home into storage, McAvoy suffered a back injury, which disabled him and eventually required surgery. Because of the extensive water damage, the drywall came off the interior walls of the home. Subsequent inspections revealed major structural deficiencies in the home. Plaintiffs filed the instant action to recover damages for more than $15,000 in repair costs and for pain and suffering. II Following a two-day trial, the jury returned a verdict in favor of plaintiffs against defendant and Root; however, the jury awarded no damages against Root, and awarded $25,000 damages against defendant: $15,000 for structural repairs and $10,000 for stress. The court denied defendant's motion for judgment notwithstanding the verdict (JNOV) or for a new trial. During the lower court proceedings, the trial court sanctioned defendant $200 for interfering with settlement negotiations between plaintiffs' counsel and defendant Root and $600 for failing to appear for a hearing. III In reviewing a decision on a motion for JNOV, this Court must view the testimony and all legitimate inferences from it in the light most favorable to the nonmoving party. Forge v Smith, 458 Mich 198, 204; 580 NW2d 876 (1998). Only if the evidence failed to establish a claim as a matter of law is JNOV appropriate; the question of law is subject to de novo review on appeal. Id. "If reasonable jurors could honestly have reached different conclusions, the jury verdict must stand." Central Cartage Co v Fewless, 232 Mich App 517, 524; 591 NW2d 422 (1998), quoting Severn v Sperry Corp, 212 Mich App 406, 412; 538 NW2d 50 (1995). A Defendant first claims that the trial court abused its discretion in denying his JNOV motion because there was insufficient evidence to support plaintiffs' claims of fraud. We disagree. In general, actionable fraud consists of the following elements: (1) the defendant made a material representation; (2) the representation was false; (3) when the defendant made the representation, the defendant knew that it was false, or made it recklessly, without knowledge of its truth as a positive assertion; (4) the defendant made the representation with the intention that the plaintiff would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff suffered damage. M & D, Inc v W B McConkey, 231 Mich App 22, 27; 585 NW2d 33 (1998). Defendant contends that plaintiffs failed to show that he made a material representation because the statements attributed to him were merely opinion or puffing and cannot form the basis of a misrepresentation claim. Further, defendant contends that there was no evidence that he knew his representations were false or that he made them without factual basis.

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Plaintiffs presented testimony and other evidence that defendant made various representations about the quality of the home and the heating system. McAvoy testified that when plaintiffs negotiated with defendant to purchase the home, there were discussions that it was "a good sound house" and that the heating system "was a safe system," would adequately heat the home, and that they should not have any problems. Rosalie testified that "Dubuc assured us that [the home] was the best, highest quality." A letter from plaintiffs to defendant, admitted at trial, evidenced in detail some of the numerous problems with the home and that it was not of the highest quality or as otherwise represented by defendant. Plaintiffs presented evidence indicating that the heating system was inadequate to heat the home and hot water, given its design and size, and that the home was not structurally sound, nor up to code when constructed. Plaintiffs also presented testimony discrediting defendant's claim that he had no way of knowing that the work on plaintiffs' home was substandard and did not meet the code. The jury could reasonably infer from the evidence that defendant made statements about the home which were made recklessly or without knowledge of their truth as positive assertions. "Whether a given representation is an expression of opinion or a statement of fact depends on the circumstances of the particular case." 12 Michigan Law and Practice, Fraud,

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